Calcutta High Court (Appellete Side)
(Ad) vs The State Of West Bengal & Ors on 25 July, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
1
S/L No.128 W.P. 23268 (W) of 2017
25.07.2018
Ct-12
Partha Pratim Biswas
(AD)
vs.
The State of West Bengal & Ors.
Mr. Biswarup Biswas, Adv.
...for the Petitioner.
Ms. Chaitali Bhattacharya, Adv.
Ms. Tuli Sinha, Adv.
... for the State.
1. This writ petition is filed by the petitioner assailing
an order passed by the respondent no.4 (Assistant
Inspector of Schools (S.E.) Tehata, District-Nadia) under his memo No. 24/1(2)/AITSD/SE dated March 7, 2017.
2. By virtue of the impugned order, the said respondent no.4 has requested the respondent no.8 (the Head Master of Barnia High School (H.S.), P.O. Barnia, Nadia) to inform the respondent no.4, as to how the respondent no.8 had issued last pay certificate in Post Graduate scale of pay in favour of the petitioner when the petitioner had been transferred on mutual ground with the respondent no.11 (Benoy Chandra Mondal) who was a pass category teacher (Physical Education).
3. The petitioner was initially appointed as an Assistant Teacher in Physical Education Subject in Barnia High School (H.S.), District-Nadia. The District Inspector of Schools (S.E.), Nadia approved the appointment of the petitioner vide memo dated April 8, 1999. The petitioner was awarded pass graduate scale of pay. Subsequently, by virtue of the Judgment and 2 Order dated June 5, 2013 passed in the matter of Partha Pratim Biswas Vs. The State of West Bengal & Ors. (In re. W.P. No.23938 (W) of 2012) the post graduate scale of pay was awarded in favour of the petitioner for obtaining M.P. Ed. Degree w.e.f. May 25, 1999.
4. Thereafter, consequent upon mutual transfer, the petitioner joined in Senpara Radharani High School (H.S.), District-Nadia w.e.f. January 10, 2017. The District Inspector of Schools (S.E.), Nadia Vide Memo dated February 14, 2017 approved the appointment of the petitioner mentioning his post graduate degree i.e. M.P. Ed. in the said approval letter. The petitioner joined his transferred post as an Assistant Teacher with 'no objection certificate' and 'last pay certificate' from his erstwhile school. In the last pay certificate, the scale of petitioner was mentioned as PB-4, 9000 - 40500, G.P. 4809, i.e., post graduate scale of pay. Thereafter, by the impugned letter the respondent no.4 enquired as to how the petitioner was awarded the post graduate scale of pay while he was working as an Assistant Teacher in Barnia High School (erstwhile school).
5. Mr. Biswarup Biswas, the learned Advocate appearing on behalf of the petitioner, submitted that the posts of physical education teachers who are having appropriate qualification in physical education subject are considered in one category, i.e., pass category. 3
6. Mr. Biswas further submitted that as per the provision of West Bengal School Service Commission (Mutual Transfer Rules, 2012), the definition of "Category" under Rule 2(c) means Assistant Teacher or the Librarian or Clerical staff and includes Clerk, Group- D, Peon or Laboratory Attendant or Night Guard or Matron at a School. The relevant provision is quoted below:
"2. Definition:-
a) *******
b) ******
c) "Category" means Assistant Teachers or the Librarian or Clerical Staff and includes Clerk, Group-D, Peon or Laboratory Attendant or Night Guard or Matron of School."
7. Mr. Biswas drew the attention of the Court by showing the Rule 3(a) of West Bengal School Service Commission (Mutual Transfer Rules, 2012) wherefrom it appears that mutual transfer shall be made between two teachers who have been appointed against the same category of vacancies and holding the same category of posts and teaching the same subject. He argued that in the said Rules, there is no sub-category regarding different pay scales. The relevant provision of the said Rules is quoted below:-
"3. Eligibility for Mutual Transfer of a teacher-
(1) An incumbent teacher shall be eligible for transfer under the provision of these rules subject to fulfillment of all the following conditions:-
a) mutual Transfer shall be made between two teachers who have been appointed against the same category of vacancies and holding the same category of posts and teaching the same subject;
b) a male incumbent shall not be eligible for mutual transfer with a female incumbent of a girls' school;4
c) the service of the incumbents concerned shall be confirmed at their respective places of posting;
d) the Incumbents concerned opting for mutual transfer shall be from the same category of schools, having same medium of instruction i.e. Bengali or English or Hindi or Nepali or Oriya or Santhali or Telegu or Urdu or Bengali-Urdu;
e) mutual transfer shall be made between two
teachers against whom no Judicial or
Departmental proceeding is pending or is being contemplated.
2. No incumbent shall be allowed to apply for mutual transfer when his/her date of superannuation is within a period of two years from the date of application for mutual transfer."
8. To buttress his submissions, Mr. Biswas relied on the judgment in the case of Baishali Banerjee -v- The State of West Bengal & Others reported in 2008(2) CLJ 472. The relevant paragraph of the judgment is quoted below:
"8. The case in hand is, however, having a salient feather. The appellant is a Physical Education teacher. There is no honours course taught by any of the Universities in the State. Hence there could be no such category in the School Service Commission in the concerned subject. We also do not find any such distinction being made in Physical Education by the School Service Commission. Hence all candidates who are having appropriate qualification in Physical Education are considered in one category i.e. pass category. If that be the position their subsequent acquisition of post graduate qualification cannot be equated with any other subject."
9. Mr. Biswas further relied on an unreported judicial authority passed by a Co-ordinate Bench of this Hon'ble Court, in the case of Swapan Basu -v- the State of West Bengal & Ors. bearing no. W.P. No.973 (W) of 2013 and submitted that in an identical case on mutual transfer the Hon'ble Single Judge directed the respondents to approve the services of the petitioner as an Assistant Teacher of erstwhile school and also to release the monthly salary/remuneration in the post 5 graduate scale of pay on the basis of last pay drawn as an Assistant Teacher of the erstwhile school together with arrears. Relevant portion of the said judgment and order is quoted below:
"After considering the materials on record, I find that the above stand of the respondent No.7 is arbitrary and cannot be sustainable in law.
The impugned order is quashed and set aside.
The respondent No.7 is directed to approve the above services of the petitioner as an assistant teacher of Mobarakpur Colony High School (H.S.), District Nadia taking into consideration his past services in the erstwhile school with effect from June 28, 1999 as also to release his monthly remuneration in the post graduate scale of pay on the basis of last pay drawn as an assistant teacher of the erstwhile school together with arrears within March 31, 2013."
10. The learned Advocate for the petitioner further relied on the judgment of the Hon'ble Apex Court in the case of Maharaj Krishna Bhatt & Anr. -v- State of J & K reported in 2008(9) SCC 24 (Paragraphs 16 and
17) and an unreported decision of the Supreme Court in case of Kakali Basu Chatterjee -v- the State of West Bengal & Ors. bearing Special Leave to Appeal (c) No.11597 of 2018 decided on 14.05.2018 to fortify his submissions that when in an identical case in Swapan Basu (supra), the State Government extended the benefit of post graduate scale of pay to a teacher who joined in a new School on Mutual Transfer taking into account his last pay drawn at his erstwhile School, without carrying the said judgment in an appeal, the petitioner being a similarly situated person should get the same benefit.
11. Mr. Biswas further submitted that the basic pay of the petitioner cannot be reduced when the petitioner 6 joined the transferred post. It amounts to punishment of an employee concerned. He relied on the judgment of the Hon'ble Apex Court, in the case of K. Gopinathan - v- Union of India reported in 1992 (4) SCC 701 (paragraph 8) and a Hon'ble Division Bench judgment of this Hon'ble Court, in the case of Prativa Biswas -v- Union of India reported in 2009(1) CHN 101 (Paragraphs 18 and 24).
12. Ms. Bhattacharya, learned Advocate appearing on behalf of the State authorities, submits that in case of physical education teacher, there are two categories- one category of post-graduate and other of honours graduate.
13. Ms. Bhattacharya relied on the judgment delivered by the Division Bench in case of The State of West Bengal & Or. Vs. Sauvik Ghosh & Ors. reported in 2009(1)CLJ 173 wherein the Division Bench held that the qualification pay could not be linked with the staff pattern.
14. She submits that this judgment has been stayed by the Supreme Court by an order passed on May 14, 2009 in SLP bearing C.C. No.6228 of 2009.
15. She further submits that by having obtained mutual transfer under the relevant rules, the petitioner was now estopped from claiming the higher pay scale as he himself had sought for the mutual transfer with 7 another person who was only a pass graduate teacher.
16. She submits that mutual transfer could only take place between the teachers who had been appointed against same categories of vacancies and holding same category of posts.
17. She submits that by having applied for mutual transfer with a person having a lower category of posts, the petitioner had given up his right to receive pay in the post graduate category.
18. She submits that the issue as to whether physical education teachers can be categorized in two categories is still pending before the Supreme Court and the Division Bench judgment in Sauvik Ghosh (supra) has been stayed by the Supreme Court. She also submits that if the Supreme Court finally decides that there are two categories then the petitioner would not be entitled to any relief.
19. I have heard learned Counsel for both the parties and perused the materials-on-record. From the records, it is clear that when the petitioner applied for the transfer, he annexed documents to his application for mutual transfer that clearly indicated that he was enjoying pay in the category of post graduate. There was no suppression on his part.
20. Secondly, it is clear that in case of physical 8 education teacher there is only one category and the qualification pay could not be subject to the fact that there is only one category. The petitioner having obtained this benefit by way of an order passed by this Court dated June 5, 2013, he was entitled to receive this pay based on his post graduate qualification. In the event, the Government had felt that mutual transfer could not take place as pass graduate and post graduate were two different categories, it was incumbent on the Government not to have allowed such a mutual transfer. Having allowed the same, without putting any condition at the time of such mutual transfer, the action of the Government subsequent to the transfer in reducing the pay scale of the petitioner is illegal and without any basis in law. Furthermore, it is not the case of the Government that any extra burden has been added to the exchequer due to such a mutual transfer.
21. The person with whom the petitioner did a mutual transfer continues to receive pay at the pass graduate scale. As the said mutual transfer was, revenue neutral, the action of the Government in reducing the petitioner's pay cannot be sustained.
22. Accordingly, the communication dated March 7, 2017 by the Assistant Inspector of Schools (S.E.), Tehatta Sub-Division, Tehatta, Nadia, is set aside and the District Inspector of Schools (S.E.), Nadia being respondent no.3 is directed to make payment of salary to the writ petitioner as per his post graduate qualification 9 as per last pay drawn in the erstwhile school before his mutual transfer together with arrears, if any.
23. W.P.23268 (W) of 2017 is allowed.
24. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Shekhar B. Saraf, J.)